Freedom, Society, and State - Ludwig von Mises Institute

u n til r e c e n t I Y c I e a n air wa s soplen t i f u I t hat i t wa s
not an economic good and hence the question of
ownership rights to it never really arose. But as
pol I uti 0 n b e c am e a grow i n g prob I em , c 1e a n air, for the
first time, became a relatively scarce, and hence an
economi cally val ued, good. Thus, a judicial decision
declaring pollutants to be a violation of property
rights would constitute not so much the creation of an
altogether new law as simply the application of the
existing law prohibiting violation of another's life
and/or property into a new area, i.e., air space. It
is also important to realize that since the decision of
the common law judge is binding only on the immediate
parties in a dispute, he has no power to impose his
dec i s ionson "s 0 c i e t y • " Thus, wh e the r 0 r not s uc h a
legal opinion would be upheld would depend largely on
the state of both public opinion and the views of other
judges. In this case, too, reference to the routine
pro c e s s b Y wh i c h the t r a d i t ion a I c omm 0 n I aw handied
such problems is of relevance here. Doubt created by
gaps in the law, Wormser points out, were dispelled
when fl a further case decides the point about,which the
earl ier judge speculated. And if the judge who uttered
the dictum was well respected, other judges after him
might continue to follow it."(29) I see no reason why
such an approach could not be made to work today. And
if this is so, it should be possible to extend the
common law into such novel areas as those of pollution
once it is recognized that new conditions have arisen
which required the reinterpretation of existing law.
For if the initial decision were warmly received, it is
likely that it would be followed by other judges and
gradually become part of the body of law.
But this raises an additional question: could the
evolution of the law take place with the rapidity required
to cope successfully with the changed circumstances?
Legislated law is at an advantage here. It
can literally change the law overnight. But I think
that the speed with which the common law can change is
often underrated. Plucknett, for example, argues that
ntheremar k a b I e f eat ureof c us tom wasits fiex i b iii t Y
and adaptabi I i ty. n fl In modern times," he says, fl we
hear a lot too much of the phrase 'immemorial custom.'
Ins 0 far as t his ph r a s e imp 1 i est hat c us tom i s 0 r
ought to be immemorially old it is historically inaccur
ate. n I n fa c t, PI u c k net t sa ys, a cu s tom wa s considered
old if it had been in existence for ten to
t wen t y yea r s, ve r y old 1 fit da ted from abo u t t hi r t y
years, and ancient if It had been around for as long as
331